Jackson, C.
The plaintiff had judgment for the value of a stallion, which it is charged died through the neglect of the defendant in transportation. The substance of the complaint is that the plaintiff delivered the stallion to the defendant in the city of Lincoln to be transported to Mexico City, Missouri, on a fast train due to leave Lincoln at 6 o’clock P. M. on December 14, 1904; that by direction of the defendant the stallion was loaded into the car at 5 o’clock P. M. of that date, but through defendant’s neglect the car was not attached to the train leaving Lincoln at 6 o’clock P. M., but was detained in the yards until 10:45 o’clock P. M. of that date, when it was attached to another train, and was delayed in transportation £o that it did not reach Kansas City, Missouri, until about 5 o’clock A. M. of December 16, that the defendant negligently and unlawfully failed and refused to unload the horse to be rested, fed and cared for during the entire journey from Lincoln to Kansas City, and kept the horse [176]*176confined in the car on board the train for 19 hours and 10 minutes; that by reason of this neglect the horse took cold and became sick; that the weather was warm when the horse was loaded at Lincoln, but became cold on the 15th, and along the route to Kansas City continued to grow colder, with cold wind accompanied by rain and snow;. that about noon of December 16 the plaintiff, through his employee, notified the defendant at its freight office in Kansas City that the stallion was sick, and requested that the horse be unloaded that it could be given medical attention; that the defendant was advised that the animal was a valuable stallion and was contracting-pneumonia, that it needed immediate medical attention Avhich could not be properly given while the animal was detained in the car, but that the defendant negligently and carelessly kept and detained the animal on board the car in its yards in the increasing cold and storm until 7:10 P. M. of the 16th, although frequently requested to place the car so that the animal could be unloaded; that, if the defendant had delivered the car to a platform to permit the horse to be unloaded within a reasonable time after being requested so to do, its life could have been saved by proper medical treatment. The appeal involves the sufficiency of the evidence to sustain the judgment.
J. R. Jones, an employee of the plaintiff, accompanied the animal as a caretaker, and it is disclosed from his testimony that the horse was shipped in a bos car suitable for the purpose. He provided bedding, hayand grain for the journey, and personally attended to furnishing the horse with water. There is no dispute that a horse might be confined in a car during- a journey of from a Aveek to ten days without danger on account of confinement alone, if otherwise well cared for^ There was no request that the horse should be unloaded en route, and no evidence that his condition required it. When facts are disclosed from Avhich it appears than an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that such carrier is an insurer of [177]*177animals transported over its line, and that proof of the receipt of animals by a carrier in good order and delivery at destination in bad order makes a prima facie case of liability against the carrier, has no weight as against such facts. The claim of liability on account of delay in shipment and en route should therefore properly be eliminated from the inquiry.
Several elements enter into the consideration of the charge of delay at Kansas City. The shipping contract was for the transportation of the animal from Lincoln, Nebraska, to Mexico City, Missouri, by Avay of Kansas City. From the latter point the route Avas over the Alton. There is little substantial conflict in the evidence as to what occurred in Kansas City, where Jones arrived with the horse at 5 o’clock in the morning of December 16. The train on AAdtich the shipment was to be made over the Alton was due to leave at 1 o’clock P. M. It appears to have been incumbent on the defendant to transfer the car from its own yards to those of the Alton. This Avas done at about 12 o’clock M. In the meantime Jones discovered that the horse was chilled. He called a veterinary surgeon, and it Avas determined to have the animal unloaded and placed in a veterinary hospital for treatment. He went to the Alton freight office to arrange for that course, and says he was there shortly after 12 M., Avhen the way bill came into that office from the hands of the defendant's agent. After some parley-at the Alton office Jones se cured a release of the animal from that company, and went from there to the freight office of the defendant, according to his testimony, at 1:20 o’clock P. M., Avhere he paid the freight to Kansas City, and requested that the car be placed so that the animal might be unloaded. The car, however, was not returned by the Alton to the defendant’s yards until about 1: 30 P. M., and, according to the plaintiff’s evidence, was not placed by the defendant so thal the animal could be unloaded until 7:10 P. M. The delivery of the animal-to the Alton by the defendant was [178]*178without notice to the defendant’s agent of a desire to unload, or that the horse was not in good condition. The shipping contract relieved the defendant from liability for loss or damage after delivery to the connecting line, so that the question resolves itself into an inquiry of whether the delay in placing the car so that it might be unloaded after its return to the defendant’s yards can be said to be the cause of the animal’s death, and if so, whether the defendant is liable therefor. In that connection the condition of the horse after arrival at Kansas City seems important. When Jones went to water and feed the horse in the morning he seemed to be chilled. He untied him and led him back and forth in the car, and he coughed some, as Jones says, indicating that he had taken a little cold. He watered and fed bfim and went to get his own breakfast. When he came back to the car at about 11 o’clock A. M., the horse showed distress and would not eat. At this time he called the veterinary, Avho testified that the case Avas not serious, and was one where recovery was usually secured by proper treatment. When the horse was finally taken out of the car, Jones says that he acted fairly well, and did not show anything near the distress that he did later. He was led behind a carriage for a distance of two miles through a severe sleet and snow storm to a veterinary hospital. After being led from six to ten blocks he appeared exhausted, and Avhen he reached the hospital was bleeding at the nostrils, and his- condition was practically hopeless. He died the following day. On behalf of the defendant the testimony discloses that when the car was returned from the Alton yards there Avas a congestion of cars in its own yards, crews were busy making up trains for departure, and that the car was set at the platform for unloading the horse as soon as it could reasonably be done. It is also shown that there were livery stables near at hand where the animal might have been taken, and avoided the necessity of the two mile trip through the storm, resulting in the exposure incident to that trip.
As we view the case, the cause of the death of the ani[179]*179mal is a mere matter of conjecture. From the single fact that an animal is sick no presumption of neglect can arise, any more than such presumption would be justified from a similar condition of a human being.
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Jackson, C.
The plaintiff had judgment for the value of a stallion, which it is charged died through the neglect of the defendant in transportation. The substance of the complaint is that the plaintiff delivered the stallion to the defendant in the city of Lincoln to be transported to Mexico City, Missouri, on a fast train due to leave Lincoln at 6 o’clock P. M. on December 14, 1904; that by direction of the defendant the stallion was loaded into the car at 5 o’clock P. M. of that date, but through defendant’s neglect the car was not attached to the train leaving Lincoln at 6 o’clock P. M., but was detained in the yards until 10:45 o’clock P. M. of that date, when it was attached to another train, and was delayed in transportation £o that it did not reach Kansas City, Missouri, until about 5 o’clock A. M. of December 16, that the defendant negligently and unlawfully failed and refused to unload the horse to be rested, fed and cared for during the entire journey from Lincoln to Kansas City, and kept the horse [176]*176confined in the car on board the train for 19 hours and 10 minutes; that by reason of this neglect the horse took cold and became sick; that the weather was warm when the horse was loaded at Lincoln, but became cold on the 15th, and along the route to Kansas City continued to grow colder, with cold wind accompanied by rain and snow;. that about noon of December 16 the plaintiff, through his employee, notified the defendant at its freight office in Kansas City that the stallion was sick, and requested that the horse be unloaded that it could be given medical attention; that the defendant was advised that the animal was a valuable stallion and was contracting-pneumonia, that it needed immediate medical attention Avhich could not be properly given while the animal was detained in the car, but that the defendant negligently and carelessly kept and detained the animal on board the car in its yards in the increasing cold and storm until 7:10 P. M. of the 16th, although frequently requested to place the car so that the animal could be unloaded; that, if the defendant had delivered the car to a platform to permit the horse to be unloaded within a reasonable time after being requested so to do, its life could have been saved by proper medical treatment. The appeal involves the sufficiency of the evidence to sustain the judgment.
J. R. Jones, an employee of the plaintiff, accompanied the animal as a caretaker, and it is disclosed from his testimony that the horse was shipped in a bos car suitable for the purpose. He provided bedding, hayand grain for the journey, and personally attended to furnishing the horse with water. There is no dispute that a horse might be confined in a car during- a journey of from a Aveek to ten days without danger on account of confinement alone, if otherwise well cared for^ There was no request that the horse should be unloaded en route, and no evidence that his condition required it. When facts are disclosed from Avhich it appears than an animal has not suffered through the neglect of a carrier intrusted with its transportation, the rule that such carrier is an insurer of [177]*177animals transported over its line, and that proof of the receipt of animals by a carrier in good order and delivery at destination in bad order makes a prima facie case of liability against the carrier, has no weight as against such facts. The claim of liability on account of delay in shipment and en route should therefore properly be eliminated from the inquiry.
Several elements enter into the consideration of the charge of delay at Kansas City. The shipping contract was for the transportation of the animal from Lincoln, Nebraska, to Mexico City, Missouri, by Avay of Kansas City. From the latter point the route Avas over the Alton. There is little substantial conflict in the evidence as to what occurred in Kansas City, where Jones arrived with the horse at 5 o’clock in the morning of December 16. The train on AAdtich the shipment was to be made over the Alton was due to leave at 1 o’clock P. M. It appears to have been incumbent on the defendant to transfer the car from its own yards to those of the Alton. This Avas done at about 12 o’clock M. In the meantime Jones discovered that the horse was chilled. He called a veterinary surgeon, and it Avas determined to have the animal unloaded and placed in a veterinary hospital for treatment. He went to the Alton freight office to arrange for that course, and says he was there shortly after 12 M., Avhen the way bill came into that office from the hands of the defendant's agent. After some parley-at the Alton office Jones se cured a release of the animal from that company, and went from there to the freight office of the defendant, according to his testimony, at 1:20 o’clock P. M., Avhere he paid the freight to Kansas City, and requested that the car be placed so that the animal might be unloaded. The car, however, was not returned by the Alton to the defendant’s yards until about 1: 30 P. M., and, according to the plaintiff’s evidence, was not placed by the defendant so thal the animal could be unloaded until 7:10 P. M. The delivery of the animal-to the Alton by the defendant was [178]*178without notice to the defendant’s agent of a desire to unload, or that the horse was not in good condition. The shipping contract relieved the defendant from liability for loss or damage after delivery to the connecting line, so that the question resolves itself into an inquiry of whether the delay in placing the car so that it might be unloaded after its return to the defendant’s yards can be said to be the cause of the animal’s death, and if so, whether the defendant is liable therefor. In that connection the condition of the horse after arrival at Kansas City seems important. When Jones went to water and feed the horse in the morning he seemed to be chilled. He untied him and led him back and forth in the car, and he coughed some, as Jones says, indicating that he had taken a little cold. He watered and fed bfim and went to get his own breakfast. When he came back to the car at about 11 o’clock A. M., the horse showed distress and would not eat. At this time he called the veterinary, Avho testified that the case Avas not serious, and was one where recovery was usually secured by proper treatment. When the horse was finally taken out of the car, Jones says that he acted fairly well, and did not show anything near the distress that he did later. He was led behind a carriage for a distance of two miles through a severe sleet and snow storm to a veterinary hospital. After being led from six to ten blocks he appeared exhausted, and Avhen he reached the hospital was bleeding at the nostrils, and his- condition was practically hopeless. He died the following day. On behalf of the defendant the testimony discloses that when the car was returned from the Alton yards there Avas a congestion of cars in its own yards, crews were busy making up trains for departure, and that the car was set at the platform for unloading the horse as soon as it could reasonably be done. It is also shown that there were livery stables near at hand where the animal might have been taken, and avoided the necessity of the two mile trip through the storm, resulting in the exposure incident to that trip.
As we view the case, the cause of the death of the ani[179]*179mal is a mere matter of conjecture. From the single fact that an animal is sick no presumption of neglect can arise, any more than such presumption would be justified from a similar condition of a human being. In this case it is pleaded and proven that, if the horse had been subjected to suitable treatment when its sickness was discovered at Kansas City, it would probably have recovered. When it was determined that treatment was necessary, the animal had passed beyond the control of the defendant and was under the control of the Alton, for whose acts the defendant was in no sense responsible. The care and responsibility imposed upon the defendant had terminated by contract of the parties. No request was made ‘of the Alton to place the car where it might be unloaded, and during the four hours or more that the car was in the Alton yards no negligence could be imputed to the defendant, whose responsibility had ceased. It was not bound to receive the animal back from the Alton for the purpose of unloading. Its acts in that respect were a mere gratuity. It was not even a bailee for hire.
The following opinion on rehearing was filed March 19, 1908. Former judgment of reversal vacated and judgment of district court affirmed:
1. Carriers: Rights of Consignor. The consignor of a horse shipped from one point to another, which will necessitate shipment over two connecting lines of railroad, on the arrival of the horse at the connecting point of said roads, may, if he so desires, decline to ship farther, and upon payment of the charges of the first carrier demand a redelivery of such horse.
[179]*179We do not think it a reasonable inference from the evidence that the loss of the animal was due to any neglect on the part of the defendant, and recommend that the judgment of the district court be reversed and the cause remanded.
Duffie and Albert, CC., concur.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.
Reversed.
2. -: Duties. In such case it is the duty of the carrier to redeliver said horse without unreasonable delay.
3. -: Negugence. Where, in the month of December, a railroad company agrees with an intending shipper of a horse to ship such horse oh a particular fast freight train, and the horse is delivered to sáid company within the time prior to the time of departure of such train designated by the agent of said company, and said company fails to ship such horse on said fast train, but ships it on another and slower train, which does not reach the connecting point of such shipment until about 24 hours later than said horse would have reached such point if shipped on said fast train, and during said last named 24 hours the weather changes and becomes cold and stormy, by reason of which said horse contracts a cold, and after the arrival of such horse at said connecting point the consignor notifies the agent of the carrier at said connecting point that such horse is a valuable horse, that it is sick and in need of immediate medical attention, that he does not intend to ship the horse farther, hut wants the car containing the horse switched to some chute or platform so that it can be unloaded for treatment, and pays the carrier’s charges for shipment to such point, and the agent of the carrier fails and neglects, for the space of five or six hours thereafter, to place said car in a position where said horse can be unloaded, and about three hours after the payment of the charges and demand for the unloading of the horse a storm of snow and sleet sets in which continues down to and after the time such horse is finally unloaded, which necessitates the unloading of the horse in said storm, and after being unloaded the horse is led through said storm to a veterinary hospital, and as a result of such delay and exposure the illness of the horse is increased to pneumonia, of which it dies; held, sufficient to sustain a finding that such delay on the part of the carrier was negligence which was the proximate cause of the death of said horse.
4. -: -: Question fob Juby. Where the owner of such horse, after it is unloaded, acting under the supervision of a competent veterinary surgeon whom he has employed, leads said . horse, in the storm which has arisen, through the streets of the city for a distance of two miles to the veterinary hospital; held, a question of fact for the jury whether a reasonably prudent man .under like circumstances would have so done.
5. -Instructions examined, and held to have properly submitted the auestions at issue to the jury.
6. Evidence examined, and held sufficient to sustain the findings of the jury.